Disputing California DUI Tests
Disputing California DUI Tests: DUI convictions in Orange County and throughout California often rest on the results of one or more California DUI tests. While many people charged with drunk driving believe that there is no way to avoid conviction if they have failed these tests, an experienced DUI lawyer can often fight the charges.
Types of California DUI Tests
BAC Testing in California
BAC tests measure the concentration of alcohol in the driver’s blood. These tests can be administered in a variety of ways, including breath alcohol tests, blood alcohol tests, and urine tests. While both the prosecution and the DMV tend to take these tests at face value, these tests are far from perfect. Some of the most common grounds for challenging chemical DUI tests include:
• Lack of probable cause, meaning that the officer had no right to administer the test and the results may be excluded from evidence
• Faulty testing equipment, such as a breathalyzer test machine that has not been properly calibrated
• Flawed administration of the test, calling the validity of the results into question
• A delay in administration of the test, raising the possibility that BAC increased between the time of the arrest and the time of the test
• A break in the chain of custody of a blood sample or urine sample
Depending on the specifics of your case, there may be other grounds for challenging the accuracy or admissibility of DUI test results.
Field Sobriety Testing in California
Field sobriety tests are dependent on human administration and human observation, which means that mistakes can occur and disputing California DUI tests and conclusions can be disputed. Environmental factors can also impact the reliability of a field sobriety test. For example, if the ground where a test is administered is wet, uneven, or rocky, that may impact a driver’s ability to perform the tests successfully.
In addition, there are very specific guidelines to be followed in administering field sobriety tests. Many law enforcement officers do not adhere to these guidelines or make mistakes in the administration of the tests. Often, scrutinizing video of the testing will reveal errors or procedural violations that call the test results into question.
The Power of Challenging California DUI Tests
Orange County prosecutors rely heavily on test results, especially BAC test results. But disputing California DUI tests is possible. A BAC test result of .08% or greater—or even lower under some circumstances—is sufficient to support a DUI conviction. However, if an experienced Orange County DUI lawyer successfully challenges the accuracy of the tests or prevents the test result from being entered into evidence, the prosecution is often unable to prove its case.
When the test results are excluded or their validity is called into question, some possible outcomes include:
• Charges may be dismissed, as the prosecution recognizes that it will be difficult or impossible to prove its case
• A very favorable plea agreement may be offered, such as a significant reduction in the charge
• The “automatic” driver’s license suspension may be avoided
• We may take the case to trial and win an acquittal (finding of “not guilty”)
Orange County DUI Lawyer Robert Miller Knows How to Fight DUI Tests
Attorney Robert Miller has gone above and beyond the norm to ensure that he has the tools and knowledge necessary to challenge California DUI test results. He has twice successfully completed the DUI Trial Skills College at Harvard Law School, is certified in Field Sobriety Testing, and has completed scientific coursework on breath and blood testing.
He also stays informed about the latest developments in DUI testing technology, legal defenses, and other critical information through membership in the California DUI Lawyers Association, the DUI Defense Lawyers Association, and the National College of DUI Defense.
Talk to an Experienced DUI Lawyer Right Away
If you’ve failed a BAC test or field sobriety test, don’t assume that means a conviction. Disputing California DUI tests is possible. Schedule a consultation today to learn more about how we can help you fight the charges against you. Contact us today.
The Holidays Are a Time of Heavy Enforcement of California DUI Laws
More Than an Urban Legend – Police Enforce DUI Laws More During the Holidays
If you’ve ever driven on a major holiday, you’ve probably noticed an increase in California law enforcement vehicles. It’s not just your imagination – police really are more active during holiday seasons. The holidays are a time of heavy enforcement of California DUI laws. Last Thanksgiving, for example, California Highway Patrol made 66 driving under the influence (DUI) arrests from November 22nd to November 26th. The state incorporates a “holiday maximum enforcement period” to detect and arrest more drunk drivers. Here’s what you need to know while hitting the road during the upcoming holidays.
Holidays Hold Historic Highs for DUIs
There is a reason the state created a maximum enforcement rule during the holidays – they are notoriously prone to drunk driving incidents. Around the holidays, there are more vehicles on the road, more hours spent traveling, and more opportunities to attend parties and imbibe. Many drivers who don’t normally drink before driving do so on holidays such as the Fourth of July, Halloween, Thanksgiving, Christmas, and New Year’s Eve – simply because everyone else was drinking and they didn’t plan a ride ahead of time.
Due to infamously high DUI rates, California law enforcement decided to ramp up their efforts during the most wonderful time of the year. The goal is to catch more drunk drivers before they can cause accidents, injuries, and deaths. To target the maximum number of holiday drunk drivers, police set up Orange County DUI checkpoints, roadblocks, and saturation patrols during the holidays. All available California police officers deploy to catch impaired drivers and other traffic violators during holiday periods of maximum enforcement.
What to Know About Holiday DUI Law Enforcement
If you’re planning on attending holiday parties this season, don’t plan on driving home. There are plenty of alternatives to driving in California, from ride-share services like Uber and Lyft to taking the public bus. Plan your ride ahead of time, either with a service or through a friend who has promised not to drink. That way, you can drink or not drink without having to worry about how you’ll get home. Deciding not to drive could not only help you avoid a holiday DUI – it could save your life.
California police are more active on holidays than other days of the year. It’s a fact you should not take lightly when making your holiday plans. New Year’s Eve is especially thick with police officers, as it’s the holiday with the greatest number of DUI arrests across the United States. You may encounter police checkpoints on your way home, which are legal roadblocks officers set up to check for suspected impaired drivers. At a DUI or sobriety checkpoint, police may ask you to stop your vehicle, show your license or insurance information, or perform sobriety tests if they notice any signs of impairment.
In general, police officers can only make sobriety tests mandatory if they have reason to suspect an impaired driver. If you refuse the sobriety tests at a checkpoint, you’re subject to the same penalties that would apply to refusal during a typical DUI stop – a one-year license suspension. No one wants to spend the time of cheer behind bars. If you receive a DUI over the holidays, especially here in Orange County, California, retain an Orange County DUI attorney for a free case review as soon as possible.
California DUI Penalties Can Be Serious
California prosecutors take drunk driving seriously, and even a first conviction may trigger serious consequences. Most California DUI charges are misdemeanors, but even a misdemeanor carries a possible sentence of up to three years in jail. A first-time DUI offender may also be placed on probation for up to three years, be assessed significant fines, and lose his or her driver’s license for four months.
California DUI Penalties are Only the Beginning
The penalties imposed by the criminal court system and the California DMV can be serious, but they’re not the only consequences a person convicted of drunk driving in California may face.
The indirect consequences of a conviction may have a significant impact on the driver’s life.
Some examples include:
• A jump in automobile insurance rates
• A criminal record, which may impact the driver in many ways
• Possible limitations on employment options
If you’ve been charged with DUI in California, you must act quickly to protect your rights and prepare your defense.
You Only Have 10 Days to Request a California DMV Hearing
One of the California DUI penalties of great concern to many clients is the driver’s license suspension. Losing your license can create a significant burden, interfering with your ability to earn a living, care for your family, and attend to many important areas of your life.
You’ve undoubtedly heard the driver’s license suspension that occurs after a BAC test result of .08% or greater as “automatic,” but that’s a bit misleading. While the suspension automatically takes effect 30 days after the arrest, you can fight the suspension—but only if you take action immediately.
You have just 10 days to request a hearing on the Administrative Per Se license suspension. If you do not request this hearing, generally called an “APS hearing,” within 10 days, you will be barred from contesting the license suspension.
Defenses to Administrative Per Se License Suspension
Many California drivers mistakenly believe that there’s no way to fight the administrative suspension if they’ve failed a breathalyzer or blood alcohol test. However, an experienced criminal defense attorney knows better. DUI lawyer Robert Miller has educated himself on the science surrounding blood testing and breath testing, and knows how to challenge the validity of the BAC test results.
In some cases, the suspension may also be challenged on legal grounds. For example, if the law enforcement officer did not have reasonable cause to believe that you were operating a vehicle under the influence, he may have overstepped his authority in requiring the blood or breath test and the results may be inadmissible.
Fighting California DUI Charges
California DUI Penalties Can Be Serious. But being charged with driving under the influence doesn’t necessarily mean a DUI conviction. An experienced DUI lawyer may be able to fight the charges against you by:
• Successfully arguing that the police officer did not have reasonable cause to stop you, or to administer a blood or breath alcohol test
• Filing a motion to suppress critical evidence, such as the BAC test result
• Demonstrating that the officer improperly administered or interpreted field sobriety test results
• Calling into question the accuracy or reliability of the chemical test results
Give yourself the advantage of a seasoned DUI defense lawyer on your side. When you retain attorney Robert Miller to represent you in a California DUI case, Mr. Miller will thoroughly investigate all aspects of your case to determine the best way to fight the charges against you.
See What Our Past DUI Clients are Saying
“Robert is professional, incredibly intelligent and not only a great attorney, but a great person to work with.” – Rebecca N. (Yelp)
“I found Robert Miller to be both professional and approachable. He returned my calls quickly and answered my questions with confidence. I felt that he explored every option available to me and fought hard on my behalf. I would gladly recommend Robert Miller to anyone who needs to-notch legal counsel and specifically a great DUI defense attorney.” – Elizabeth O. (Yelp)
See What Other Attorneys are Saying about Our DUI Lawyer
Attorney Robert Miller has more than 60 endorsements from other lawyers on Avvo. Other attorneys know that California DUI penalties can be serious, and here’s what a few of them have to say:
“Attorney Miller is an excellent advocate for his clients, and his mastery of the DUI/DWI Law in California is top-notch. I endorse him as a great advocate, and lawyer.” — Anthony Rao, Child Custody Attorney
“I endorse this lawyer. Attorney Miller is an outstanding attorney with an exceptional reputation. He is one of the best lawyers in his state and a credit to the legal profession. If I was arrested for drunk driving I would call him immediately. He is the best of the best.” — Howard Lewis, Divorce and Separation Attorney
“Robert Miller is one of the go to criminal defense lawyers in Southern California. He is knowledgeable, respected by his peers legal community, and is dedicated to her clients. Robert is effective in dealing with judges and opposing counsel. Without reservation I endorse this lawyer.” — Randall Longwith, Criminal Defense Attorney
Avoid or Minimize California DUI Penalties
California DUI Penalties Can Be Serious. Attorney Robert Miller has handled thousands of cases, and has achieved positive results for many clients in a wide range of circumstances. Our first step is always to thoroughly examine the specifics of your case for flaws or violations of your rights that will allow us to secure a dismissal. If that isn’t an option, we’ll fight for the least severe California DUI penalties.
You owe it to yourself to get help now. Contact us today.
Help! I’ve Been Arrested For DUI In Orange County.
Arrested for DUI? What to do if Arrested For DUI In Orange County – You need the best Orange County DUI lawyer standing behind you at your court appearance. With over 23 years of experience in Orange County DUI Defense Practice, Miller & Associates is your best choice.
DUI Lawyer Robert Miller has handled thousands of DUI cases just like yours—and while this is certainly a stressful time for you, it’s another day at the office for him. Let Robert Miller’s experience and professional expertise guide you to a successful conclusion of your DUI case.
If you’ve received a DUI, let the best DUI lawyer in Orange County take your case. We have a history of dismissals, trial wins, and negotiated cases in favor of the client, and you can rest assured that your case will be never be simply handed off to another lawyer during trial preparation or during the course of your case. What to do if Arrested For DUI In Orange County is where we can help — We conduct thorough investigations of the evidence against you, in order to determine the best course of action for your success.
Practical, Hard-Working DUI Defense Lawyers In Orange County
Miller & Associates have handled 5000+ Orange County DUI cases, with successes at the DMV and in OC courts. We help clients win back their driving licenses at the DMV and get driving again. Helping you beat your case is our top priority—that’s why we’re considered the best Orange County DUI lawyer you can work with.
What Can I Expect If I Choose Miller & Associates?
When you choose to hire us for your case, we will begin with a free, detailed case review from the Orange County DUI attorney who will be dedicated to your case. We offer honest assessments of your potential outcome, based on our experience in the industry. We will inform you of our responsibilities and expectations. You will have direct phone and email contact with your Orange County DUI lawyer during the entirety of your case.
We provide cutting-edge scientific education on breath testing, blood testing, and field sobriety testing. We will review the maintenance, calibration and accuracy of breath tests and blood tests to ensure trustworthy results. We will challenge an illegal arrest or stop, investigate police video for your defense, and review and challenge every aspect of your case. A win for you is a win for us.
We dig deep into your case to ensure that your arrest and the charges against you are fair, legal, and true. This means that we look closely at every fact in your case, and challenge each one of them. From the reason you were pulled over in the first place, to the tools and nature of your field sobriety test, we leave no stone unturned.
What to do if Arrested For DUI In Orange County – Being arrested for DUI in Orange County is something we do not take lightly—that’s why our clients have called Robert Miller the best Orange County DUI lawyer, and how we have helped so many people with their DUI case.
Why Is Robert Miller The Top Rated DUI Lawyer In Orange County?
Our clients and peers have given us top ratings and reviews to solidify our place among Orange County DUI lawyers. Our attention to detail and dogged determinedness to tackle every charge against you make us winners in the courtroom.
We have a proved track record of keeping our clients out of jail, helping them avoid losing their driving privileges, and reducing charges and sentences. Our DUI lawyers have practiced in Orange County courts for more than 20 years, and we’re ready to put our experience to work for you. Find out what to do if arrested for DUI In Orange County.
Should I go to AA to help my DUI case?
Unfortunately, there is no “one size fits all” answer to that question. On this page, we will discuss how AA may, or may not, help you with your DUI case, along with the recommendations from our Orange County DUI Attorneys.
What is Alcoholics Anonymous?
Alcoholics Anonymous (AA) is actually named after a book. The book, Alcoholics Anonymous: The Story of How More Than One Hundred Men Have Recovered From Alcoholism“, is known as “The Big Book”. The book was written by William (“Bill”) Wilson, whom members of AA often refer to as “Bill W.” The group was founded in 1935.
AA uses the “Twelve Steps” — which are development steps, along with social interaction, support, and communication with other members, including “sponsors”.
AA has been wildly successful, and it’s unlikely that you haven’t heard of it somewhere. Many similar programs like Narcotics Anonymous also use the Twelve Steps as part of their programs, many of which are based upon AA’s structure.
Does AA Work? Can it help?
Many have criticized AA for not keeping, collecting, or allowing statistics on their effectiveness. Studies of people volunteering to report on effectiveness have shown that there is often no correlation between AA attendance and complete and continued sobriety, and sometimes inconsistency.
Many scientists looking at addiction issues, and the body’s mechanism of addictions, critique AA for not being as effective as other options.
Problems with AA being faith-based or requiring religion
Some have greatly criticized AA for being faith-based. For example, the second and third, fifth and sixth of the twelve steps are as follows:
“Four: We came to believe that a Power greater than ourselves could restore us to sanity.
Five: We made a decision to turn our will and our lives over to the care of God as we understood Him.
Six: Admitted to God, to ourselves, and to another human being the exact nature of our wrongs.
Seven: Were entirely ready to have God remove all these defects of character.”
The fact that AA requires belief in a higher power has led some to conclude that courts have a first amendment problem in recommending it since that might violate the 1st amendment prohibition on the endorsement of an official religion. Judges get around that by requiring AA only as a bail requirement and allowing conditions of “any self-help classes”, which opens it to other options that are not strictly faith-based.
What alternatives are there to AA?
Other than AA, there are the following options (among others), that are alternatives to alcoholics anonymous:
- Life Ring (a secular group which is popular with our clients, because they have online meetings)
- Rational Recovery
- Celebrate Recovery (faith-based and usually through a member church)
- Secular Organizations for Sobriety (SOS)
- SMART Recovery
- Women for Sobriety
What takes place in AA meetings?
AA has two types of meetings – closed, and open. In open meetings, which are, as the name implies, open to everyone, according to one account, you can find the following:
- Initial announcements
- The reading of the 12 Steps and 12 Traditions
- One alcoholic will come up to the front and share his or her story of strength, hope, and recovery.
On the other hand, closed meetings differ in, that, in addition, to the above, you will find (after the above portions of the meeting), a group reading or discussion based on one of the steps or traditions, or a topic related to recovery.
How can Alcoholics Anonymous be helpful in a DUI case?
AA can show commitment to sobriety. By being around others that are able to support and help you in the path away from alcohol, that puts you on the road to recovery, you can help assuage the fears of the court, the prosecutor, and your defense attorney that you may relapse, and face another crime.
Unlike SCRAM or other monitoring devices that are work around the clock, it does not monitor sobriety, however, or provide any alternative sentencing for jail time in a DUI case.
What is a DUI lawyer’s recommendation regarding AA meetings?
As a firm of DUI lawyers in Orange County, having handled thousands of DUI cases in over 23 years of practice, we have seen many clients helped by AA and similar programs, and others that have not. Our recommendation is to be honest with yourself, and to get into AA or a more intensive program right away, if you feel you need to, or if you feel you have a problem. Should I go to AA to help my DUI case? Only you can make that decision for yourself. But if you decide you need help, AA can be an important first step, or for many an ongoing component of other support structures to keep you clean.
Where can I find AA meetings in Orange County, California?
Orange County has its own directory of all the AA meetings in the county. You can find it at: http://www.oc-aa.org/directory/meetings.asp
How can I discuss AA and how it can help in my case?
Contact us if you have questions about an Orange County DUI case, or if you need the help of our law firm. We can help answer questions for you about whether AA can help your DUI case. We are here to help you.
Seven ways that a DUI conviction can affect you
If you were unlucky enough to be arrested in Orange County, California, and were taken to the Orange County Central Jail in Santa Ana, you probably made the decision then and there to never go back.
And before you consider pleading guilty to any crime, think long and hard about the consequences of any criminal conviction, even if it is for a first-time DUI. Here are the seven ways that a DUI conviction can affect you, to think about in reference to your DUI case when considering how your DUI may affect you in the future.
1. A DUI can affect your ability to help others
Many charities, including Big Brothers and Big Sisters, Children’s Hospital of Orange County (CHOC), and foster care agencies, will run a criminal background check. Although everyone’s situation is different, they are typically reluctant to choose anyone that has a recent conviction or is on probation.
1. A DUI can affect your career. Your current job, or your intended career path, could be affected. California is an “at-will” employment state, which means that any employer can let you go for any reason, or for no reason at all, with the exception of discrimination, which is prohibited. If you are sent to jail, have to do community service, or are up for a job against others with a clean record, you may be let go, or not chosen for your dream job.
2. A DUI Can make it impossible for you to sign up for the military.
The military will not take someone on probation, period. You will need to have probation terminated early, or wait until probation expires, to be able to join the military.
3. A DUI can affect non-U.S. citizens.
Most misdemeanor DUIs won’t lead to deportation. However, a felony DUI, a drug-related DUI, or a series of DUI convictions could negatively affect your stay in the U.S. or your application for citizenship, if you are a green card holder or here on an immigration visa.
4. A DUI affects your future licenses.
Not only your future licenses, but a DUI can affect a state and federal license related to your career. Any criminal record can impact your ability to obtain certain professional licenses or can mean you may have a current license suspended. A career in medicine, finance, pharmacy tech, real estate, or mortgage work could be affected.
5. A DUI on your record can cause potential employers to not hire you.
Even if your conviction was for a misdemeanor DUI, it will show up on a criminal conviction. Even worse, if you lie on your application and the employer later finds out about it, it could lead to an automatic termination. When competing for jobs with persons without a DUI, you could be at a disadvantage.
6. A felony DUI affects your second amendment rights.
If convicted of a felony DUI, you cannot buy or possess a firearm. Under California law, any person convicted of felonies cannot possess firearms. While this doesn’t matter to some DUI defendants, to others this is a big deal.
7. A DUI can affect child custody.
If you are in the middle of a child custody battle, a recent DUI is going to be used against you to make you look like a bad parent. Your ex will use your DUI as leverage in court.
Contact us today. Don’t just plead guilty until you consider all the consequences. Speak to our Orange County DUI attorneys at Miller & Associates. We can help advise you on your best options with your DUI. Contact us.
California First Offense DUI
A DUI with no priors is considered a California First Offense DUI. For a first time DUI with no priors, the law has certain specific things that must be proven, and certain punishments and requirements if the case is proven.
The punishment for first offense DUI cases:
The law has a maximum (six months in jail, an alcohol school, and fines and fees that total $5000), and a minimum (three years probation, an alcohol school, and base fines of $390). In Orange County, DUI cases are sometimes reduced to another charge, like an exhibition of speed, or speeding, a drunk in public, or a dry reckless or wet reckless, which would reduce the entire sentencing range below the minimum. For a case that has no priors, you would be looking at the minimum, not the maximum.
However, the prosecutor would add punishment if there were any of the following:
- a blood alcohol level of at or above a .16%;
- children in the car;
- an accident (with or without injury);
- an allegation that you were speeding while DUI;
- or any priors.
If there is an injury, or a death, caused as the result of driving under the influence of alcohol or drugs, or while the driver’s blood alcohol is 0.08% or more, the driver can be found guilty of a felony and could go to state prison for over a year, and possibly for up to five years, depending on whether it’s the driver’s first, second, or third offense. Even as a first-time offender, with no priors, you can face jail time for felony cases.
We can help avoid the more severe punishment for any of the above. The good news is that there is a way to avoid losing your driving privileges, and you probably will not face any jail time for a first time DUI.
DUI Probation Terms
If you are convicted for a first time DUI, with nothing on your record, you will usually be given DUI probation for three to five years. If you violate any of the terms of your DUI probation, you can face a hearing in front of a judge, where additional penalties can be applied. The standard conditions of probation include:
- You cannot drive with any measurable amount of alcohol in your system;
- You must submit to a blood or roadside breathalyzer (PAS) test upon the request of any police officer; and
- You must not violate any law (no further misdemeanors or felonies — ordinary traffic infractions don’t count).
The law involved in First DUI cases with no priors:
The law that makes driving under the influence (DUI) of alcoh , and DUI under the influence of drugs (DUID) is California Vehicle Code VC 23152, and its subsections. Those define the type of DUI as follows:
- VC 23152(a) It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.
- VC 23152(b) It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.
- VC 23152(c) It is unlawful for a person who is addicted to drugs to drive a vehicle.
- VC 23152(e) It is unlawful for a person who is under the influence of any drug to drive a vehicle.
- VC 23152(f) It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.
What must be proven for DUI cases with no priors?
1. That the defendant drove a vehicle;
2. When (he or she) drove, the defendant was under the influence of an alcoholic beverage, or a drug, or under the combined influence of an alcoholic beverage and a drug.
Proving that someone was under the influence can be shown by simply being above a .08, at which level you are presumed impaired. Or, the prosecutor can show that a person is under the influence if, as a result of drinking or taking a drug, his or her mental or physical abilities are so impaired that they is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.
The way that in which a person drives is not enough by itself to establish whether the person is or is not under the influence. But it, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.
What defenses are there for DUI cases with no priors?
Defenses to a case with no priors for first time offenders would include the following:
- A lack of probable cause (or no legal reason) for stopping the car;
- Failure to adhere to proper protocols for arrest, and for testing;
- Contamination issues in testing;
- A lack of proof regarding timing of intoxication;
- A lack of proof regarding who the driver was;
- A lack of proof regarding impairment, along with other defenses and issues.
What about my license?
In order to keep your license, you must win both the DMV hearing in your DUI case, and avoid a conviction in court for DUI, which can also suspend your license. A top rated DUI attorney, can help you do that.
How can an attorney help me with a DUI with no priors?
With a lack of any prior charges, you are in a unique position to present character references or other information about you, to mitigate your damage, and have the case reduced or dismissed. The prosecution fights harder with cases that have a prior DUI or a criminal history, and won’t extend consideration to dismissal or a reduction of the case. This is where the negotiation skills of a DUI expert or specialist can help you.
Contact us today to start on a strategy to help your first time DUI with no priors. We can help you.
Orange County DUI Probation Terms
In Orange County, if you are convicted of a DUI, or if you agree to plead guilty to a DUI as part of a plea bargain in a DUI case, you are subject to the standard Orange County DUI probation terms.
Those terms are part of the standard minimum DUI sentence. By law, a judge in a DUI case has to sentence someone to a minimum of three years probation (and in some jurisdictions, they may sentence to five years probation, like they do with San Diego DUI cases.
As a condition of probation, and as a condition of probation, you can face more severe punishment if you violate any of the terms of a DUI sentence or DUI probation.
That’s a problem, because as I have found, in over 23 years of practice as a DUI Attorney in Orange County, most DUI clients cannot remember what terms were in their DUI sentence or Orange County DUI Probation, even though it was in writing and sets forth conditions that they have to live by every day for the next three years or more.
What is probation in an Orange County DUI case?
Probation is a special status for persons that plead guilty in almost all Orange County criminal cases. The idea of probation is that there is additional punishment (usually jail time) hanging above the head of someone on probation. The client will get a lowered sentence, and be placed on probation, but bargain with the court that they will not get in trouble again.
If you violate any terms of probation, that is considered a probation violation. If the violation could be considered an additional crime, then you have two cases – the prior DUI case they are on probation for is resurrected, and they are facing both the new case, and a probation violation on the old DUI case.
What is involved in probation in an Orange County DUI case?
Probation, for purposes of DUI cases in Orange County, means no probation officer, no checking in with any probation office, and no prohibitions on where you live, where you move to, or where you can work.
You are on special status, and only have potential punishment if you violate the law, or violate the specific terms of your DUI sentence, or your DUI probation in Orange County.
What are the Orange County DUI Probation Terms?
In Orange County DUI cases, the court has to sentence between the minimum and the maximum by law for DUI punishment. The terms of probation in a DUI case depend on whether or not there are DUI enhancements filed that increase the punishment for a DUI.
For example, if there is DUI with an accident in Orange County, there is a requirement that the Orange County judge handling the case order that any damages be paid if they are not already covered by insurance. This is called restitution. If the DUI doesn’t involve an accident, this requirement wouldn’t be imposed as a sentence term or a term of probation.
Similarly, there can be additional DUI sentencing and probation terms for any of the following:
- A DUI with children in the car (usually requiring a protective order and child care classes);
- A DUI with a high blood alcohol level (at a .16% or higher) (usually requiring a longer alcohol school;
- A DUI with a prior (usually requiring a longer alcohol school, and the increased punishment for a second time DUI in Orange County, or a third time DUI in Orange County).
- A DUI with an accident (usually requiring that restitution be paid to the victim, as mentioned above).
Other than the special situations above, in a DUI case in Orange County, the terms of a DUI sentence, and thus the terms of DUI probation in Orange County court is typically as follows:
- Violate no law.
- Obey all orders, rules, and regulations, and directives of the Court, Jail, and Probation.
- Do not drive without a valid driver’s license in your possession.
- Do not drive without proof of valid auto liability insurance or financial responsibility as required by law.
- Use true name and date of birth only at all times.
- Disclose terms and conditions of probation when asked by any law enforcement or probation officer.
- Do not drive a motor vehicle with any measurable amount of alcohol in your blood*.
- Submit to a chemical test of your blood on demand of any peace officer, probation officer, or mandatory supervision officer; and
- Carry valid government issued identification at all times.
*Most people don’t realize that they cannot have any alcohol in their system while on DUI probation. They often think that, because the legal limit is 0.08%, that they can drive with any amount below that. For people on DUI probation in Orange County, you cannot drive with any alcohol in your system, at all.
If you are stopped, for any reason, and you are found to be on DUI probation and have alcohol in your system, you have violated your Orange County DUI Probation Terms.
How do I get off Probation in an Orange County DUI case?
Probation expires automatically in DUI cases when three years from the date of the entry of the guilty plea or guilty verdict in a DUI is entered.
The law also allows you to get off probation early, in as little time as the minimum of one year of probation, if you ask for it early. That requires a written motion, filed with the court, served on the prosecutor, and argued before the court. That motion is called a “Motion to Terminate Probation“.
Once you are off probation, your DUI criminal conviction can be expunged. An expungement clears your record to the maximum allowed by the expungement laws, by removing the conviction and retroactively replacing it with a dismissal, making it look like the DUI was dismissed.
Contact us for Concerns about your Orange County DUI Probation Terms
Contact us today if you need an Orange County Probation Violation Attorney. We can help you avoid maximum punishment if you’ve violated your Orange County DUI Probation Terms.
Under 21 DUI – California’s Zero Tolerance Laws
Under 21 DUI – California’s Zero Tolerance Laws: Minors who are facing an underage DUI face not only a citation, but the additional punishment that is built into the structure of the law itself. That includes the harsh penalties contained in California’s Zero Tolerance Laws. This page discusses in detail aspects and related punishments from an Under 21 DUI which apply to all Underage DUI cases, or any DUI or possession of alcohol for a Minor.
The law regarding Under 21 DUI – California’s Zero Tolerance Laws
If someone is caught driving under the influence, and they are under age 21, they can be charged with a number of offenses. That includes the following:
- Driving under the influence of alcohol or drugs under 21 -California Vehicle Code Section 23136(a) VC – driving with a blood alcohol level of .01% or higher when under age 21.
- Under 21 DUI with a blood alcohol content of 0.05-007 percent, which is illegal under California Vehicle Code Section 23140 VC;
- Driving under the influence of alcohol and/or drugs – California Vehicle Code Section 23152(a) VC, which applies to persons under or over 21;
- Driving with a blood alcohol content of 0.08 percent or higher – California Vehicle Code Section 23152(b) VC, which applies to persons under or over 21;
How does the law decide what charges to bring?
The law for each crime is different. Law enforcement, and the prosecutor’s office, usually decides which charges to bring based upon the age, and alcohol level, involved. Under California law, you cannot be charged with two crimes from the exact same conduct, for double jeopardy reasons, so you can only be charged or convicted of one of the crimes below, with the exception of VC 23136, which is civil in nature, and can be added to any charge of VC 23140, or VC 23152.
Vehicle Code VC 23140 – Driving Under 21 with a Blood Alcohol Level of .05% or greater
VC 23140 – Under 21 DUI – California’s Zero Tolerance Laws – The VC Statute
Vehicle Code 23140 VC reads: “(a) It is unlawful for a person under the age of 21 years who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. (b) A person may be found to be in violation of subdivision (a) if the person was, at the time of driving, under the age of 21 years and under the influence of, or affected by, an alcoholic beverage regardless of whether a chemical test was made to determine that person’s blood alcohol concentration and if the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle while having a concentration of 0.05 percent or more, by weight, of alcohol in his or her blood.”
VC 23140 Punishment and Penalties
Vehicle code 23140 VC is an infraction, not a misdemeanor or felony DUI. As an infraction, it cannot carry jail time, and is more of the nature of a traffic ticket. However, it does have the following penalties by law, if you are convicted of this charge:
- A fine of $100 or more;
- Attendance at an alcohol school or alcohol education classes for three months, if you are over 18; and
- Through the DMV, suspension of your driving privileges for one year.
An underage .01 DUI will also stay on your record, unless it is specifically later cleared through an Orange County expungement; and you might be required to report it on college or job applications.
Proving a VC 23140 charge
Proof of a VC23140 DUI charge is usually made through a PAS test, or field breathalyzer. Those are subject to any breath test defenses in a DUI. All that has to be shown is that the person was driving, was under 21, and was .01% or higher for alcohol levels, as tested on the DUI breath test.
VC 23140 Refusal
Refusing a breath test or DUI testing request by any law enforcement when you are under 21 results in an automatic one year suspension of driving privileges. That can add to the one year suspension for underage DUI, and make your suspension two years, instead of one.
VC 23140 Defenses
Defenses to a VC 23140 charge include that the person was not driving, was not actually under age 21, and that there may have been error in the breath testing machinery.
Also, involuntary intoxication, mouth alcohol in the breath test, and a lack of probable cause for the police stop and arrest or citation, can be used to defend against this charge. Because Listerine strips, other breath sprays, and over the counter cough syrups and nighttime cold formulas such as Nyquil, contain alcohol, those might create a false positive for alcohol consumption.
Our Orange County DUI lawyers always investigate and examine the calibration and maintenance records for the PAS device or other means of alcohol testing. Because the threshold for license suspension is so low, a PAS device that is calibrated even slightly off may throw off the reliability of the test results, which can make a big difference when the difference is between a 0.0% and a .01%, as in the case of under 21 DUI cases.
VC 23140 and other charges
Vehicle Code VC 23136 “zero tolerance” underage DUI can also be charged. This is a civil penalty, and not a crime. As a result, it is possible to be both convicted of VC 23140 and also cited for VC 23136.
Vehicle Code VC 23136 “zero tolerance” underage DUI
This law prohibits anyone under 21 from driving with a BAC of 0.01 or above (i.e., with any detectable alcohol in his/her system) as a result of consuming alcoholic beverages.
VC 23136 is not a crime. It is a civil penalty. It was created by California law to have those under age 21 suffer a (1) one-year suspension of the defendant’s driver’s license.
It is common for minors charged with Vehicle Code 23140 (under-21 DUI with a BAC of 0.05 or above), or minors charged with Vehicle Code VC 23140, to also face the penalty under Vehicle Code 23136.
The law – Vehicle Code VC 23136:
(a) it is unlawful for a person under the age of 21 years who has a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test, to drive a vehicle. However, this section shall not be a bar to prosecution under Section 23152 or 23153 or any other provision of law.
(b) A person shall be found to be in violation of subdivision (a) if the person was, at the time of driving, under the age of 21 years, and the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle with a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test.
A Vehicle Code 23136 accusation is appropriate to anybody below the age of twenty-one who drives with a blood alcohol concentration (BAC) of at least 0.01% . Those drivers are recognized under California’s “zero tolerance” law for underage DUI. Being accused can lead to your driver’s license being suspended for one year by the California DMV under the under 21 DUI – California’s zero tolerance laws.
Related charges for Underage DUI
Additional charges involving underage drivers and alcohol include a minor carrying or possessing alcohol, whether the container is open or not, in your vehicle. Also, using a fake ID or the real ID of an older person to obtain alcohol, or even to ride as a passenger in the car and possess alcoholic beverages, can all be illegal.. These offenses can be separate offenses or be compounded with your DUI charge and result in harsher consequences.
California Vehicle Code 23224 VC – Possession of Alcohol in a Vehicle Under Age 21
A closely related law to the DUI under age 21 is VC 23224, possession of alcohol in a vehicle by a person under 21. Under this California aw, people under 21 may not carry alcohol inside a vehicle as an open container, unless:
- the container is full, sealed, and unopened, and
- they are:
- accompanied by a parent or other specified adult,
- getting rid of the alcohol because their parent or such an adult told them to, or
- carrying it as part of their job working for someone with a legitimate liquor license.
Vehicle Code 23224 VC Penalties
Violation of Vehicle Code 23224 VC is a misdemeanor, and as a result, carries more serious penalties than an Under 21 DUI under VC 23136 or VC 23140. Penalties include all of the following:
- One-year driver’s license suspension;
- up to $1000 fine;
- vehicle impoundment for up to 30 days
Charges of Vehicle Code section 23132 under age 21
In addition to the above, a driver under the age of 21 can still be charged with an under 21 DUI – California’s zero tolerance laws. California Vehicle Code section 23152 VC, allows prosecution just like an adult. The zero tolerance violation will be added to the DUI charge, resulting in the same penalties an adult would face (several thousand dollars in fines, probation, potential jail time or community service, and the mandatory alcohol education program) in addition to the one year license suspension.
How to get your privilege to drive back if you have a suspension- the Critical Need to Drive Application
While the under 21 DUI – California’s zero tolerance laws sets up a harsh punishment for any type of minor DUI, there is the possibility of driving again during the suspension period.
Under Vehicle Code 13353.8 when an order suspending your driving privilege is issued because of any violation of Vehicle Code 23136 (a), the department might lift restrictions on an individual’s driving privilege based on a presentation of a “critical need to drive.”
When you are eligible for the DMV Critical Need to Drive
You are only able to get a critical need to drive license from the DMV, after your license is actually suspended, and only if you do not have any of the following:
- Priors: Within a decade of the present violation of Vehicle Code 23136, the driver has no other significant record such as have previous APS action or conviction;
- Refusal: The driver has not been suspended or cancelled for refusing to take a PAS or other chemical test;
- No actual critical need: The driver has not shown an actual need to drive, or there are other alternatives available to the driver for transportation.
What is considered a critical need to drive?“
The DMV’s definition of a “Critical need to drive” is looked at in four categories. You can apply using more than one category. If approved, you would have a California restricted license, as allowed under Vehicle Code 12513, limited to driving for purposes under one or more of those categories.
The four categories of critical need to drive:
- To and from school or work
- For family illness
- For family enterprise and/or business
- For medical purposes (for yourself or for another
An application for Critical Need Restriction, DS 694, must be finished and presented to the Office of Driver Safety Mandatory Actions Unit headquarters, in Sacramento, California. If it is approved, you must pay a reissue fee of one-hundred and twenty five ($125) dollars and submit a California Insurance Proof Certificate, known as a SR 22. Once the application for critical need is approved, the suspension may be lifted and you can get a license to drive under the terms of the critical need application, despite the harsh under 21 DUI – California’s zero tolerance laws.
Critical need application approvals:
You should know that, according to the DMV, most critical need applications are denied. The DMV considers these licenses to be severely limited, and only granted in extreme need in situations where all other transportation is inadequate. We have had success in detailing our client’s need to drive, and the unavailability of other options, by submitting substantial documentation along with the application, which greatly increases your chances for success.
How an attorney can help with an Underage DUI
We can professionally handle your underage DUI matter, and do everything in our power to minimize the impact of the under 21 DUI – California’s zero tolerance laws on your license and your criminal record. That may include in many cases fighting the charges to dismissal of the case, or negotiating with the court, or the prosecutor, for a different charge, that avoids the punishment under the charges filed. We have helped many families facing an under 21 DUI case, and can help you also.
Contact us today. We can begin work on a strategy to keep you driving and avoid the long term problems of a mark on your driving record, or a criminal record. The Under 21 DUI – California’s Zero Tolerance Laws do not have to keep you from a record, or from driving, if handled correctly.